William & Mary Bill of Rights Journal Volume 5 (1996-1997) Issue 1 Article 2 December 1996 The Essential Elements of Judicial Independence and the Experience of Pre-Soviet Russia Thomas E. Plank Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Legal History Commons Repository Citation Thomas E. Plank, The Essential Elements of Judicial Independence and the Experience of Pre- Soviet Russia, 5 Wm. & Mary Bill Rts. J. 1 (1996), https://scholarship.law.wm.edu/wmborj/vol5/ iss1/2 Copyright c 1996 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj WILLIAM AND MARY BILL OF RIGHTS JOURNAL VOLUME 5 WINTER 1996 ISSUE 1 THE ESSENTIAL ELEMENTS OF JUDICIAL INDEPENDENCE AND THE EXPERIENCE OF PRE-SOVIET RUSSIA Thomas E. Plank* Judicial independence, which first developed in the Anglo-American legal system, is valued by many countries as an important condition for the rule of law. Its existence in any legal system, however, depends on concrete institutionalarrangements. In this Article, Professor Plank iden- tifies four institutional elements necessary to establish and maintain an independent judiciary: fixed tenure (with limited exceptions), fixed and adequate compensation, minimum qualifications, and limited civil immu- nity. The presence of these elements ensures an independent judiciary in many countries. The lack of permanent tenure for judges in most Ameri- can states, however, raises serious questions about their independence. To test the extent to which these elements may be universally appli- cable, Professor Plank analyzes the viability of judicial independence in nineteenth-century Russia. In 1864, Russia first created an independent judiciary when it radically transformed its legal system by incorporating and adapting a Western-style civil law system that purposely established an independent judiciary. The Judicial Reform contained all the institu- tional elements necessary to ensure the independence of Russian judges, and their independence endured during the remaining half-century of the Associate Professor of Law, University of Tennessee College of Law. A.B., Princeton University, 1968; J.D., University of Maryland, 1974. I thank Joe Cook, Judy Cornett, Tom Davies, and Carol Parker for their comments on drafts of this Article, Bella Safro for her research assistance in the Russian language materials, and L. Eric Ebbert and J. Britton Gibson for their research assistance in English language materials. This Article was inspired by and is dedicated to the late Everett F. Goldberg, my teach- er, mentor, and friend at the University of Maryland School of Law. All translations of English language materials are mine unless otherwise indicated. 2 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 5:1 Russian Empire despite attacks from the government and significant members of society. The successful implementation and operation of an independent judiciary even in the autocraticstate of Russia demonstrates that any society desiring to implement a government based on the rule of law may establish and maintain an independent judiciary by incorpo- rating these four institutional elements. TABLE OF CONTENTS INTRODUCTION ..................................... 2 I. THE ELEMENTS OF JUDICIAL INDEPENDENCE .................. 6 A . Definition . .................................... 6 B. Requirements for Judicial Independence ............... 8 1. Tenure and Accountability ...................... 10 a. Length of Tenure .......................... 10 b. Methods of Accountability .................... 13 c. Reappointment of Judges with Limited Terms ....... 23 2. Fixed and Adequate Compensation ................. 29 3. Minimum Qualifications ....................... 31 4. Im m unity .................................. 32 5. Other Factors .............................. 34 C. Separationof Powers ............................ 36 II. THE RUSSIAN EXPERIENCE WITH JUDICIAL INDEPENDENCE ..... 40 A. The Pre-Reform Russian System .................... 40 B. Significant Features of the JudicialReform of 1864 ....... 44 C. JudicialIndependence Under the Reform .............. 51 1. Guarantees of Tenure ......................... 52 2. Compensation .............................. 62 3. Qualifications .............................. 66 4. Judicial Immunity ............................ 67 5. R espect ................................... 68 D. Other Attacks on the Judicial Reform ................. 70 III. CONCLUSION .................................... 72 INTRODUCTION Political systems that aspire to the rule of law consider judicial inde- pendence indispensable.' Many view judicial independence-used here ' See THE FEDERALIST No. 78, at 490 (Alexander Hamilton) (Benjamin F. Wright 1996] THE ESSENTIAL ELEMENTS OF JUDICIAL INDEPENDENCE 3 to mean the freedom of judges to decide individual cases according to their view of the law-as necessary to protect the liberty of the individu- al citizen. 2 In addition, an independent judiciary may also promote the efficient administration of a complex social system, regardless of the value that the society places on individual liberty.3 In either event, de- spite otherwise different legal cultures, many countries of the world sub- scribe to the importance of judicial independence.4 ed., 1961) (asserting that a judiciary holding office during good behavior "is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws"); MODEL CODE OF JUDICIAL CONDUCT Preamble (1990) ("Our legal system is based on the principle that an independent, fair and com- petent judiciary will interpret and apply the laws that govern us. The role of the judicia- ry is central to American concepts of justice and the rule of law."); id. at Canon 1 ("A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDI- CIARY.") id. at Canon L.A ("An independent and honorable judiciary is indispensable to justice in our society."); see also infra notes 2, 19. For a short but informative dis- cussion of the "rule of law," see Jeffrey Jowell, The Rule of Law, in THE CHANGING CONSTITUTION 57 (Jeffrey Jowell & Dawn Oliver eds., 3d ed. 1994). 2 See THE FEDERALIST No. 78, supra note 1, at 491, 494-95; U.N. SOCIAL DE- FENCE RES. INST. & INT'L Ass'N OF JUDGES, THE ROLE OF THE JUDGE IN CONTEM- PORARY SOCIETY 11 (1984) ("[A] free society, democratically organized, must of neces- sity rely on the concept of a state governed by the rule of law, since the priority of such rule over social forces and trends is the only legal way to guarantee freedom. It follows that the judge, in order to protect this essential value, must be free to decide according to the law and be independent of other influences . .. ."); Archibald Cox, The Indepen- dence of the Judiciary: History and Purposes, 21 U. DAYTON L. REV. 565, 567-74 (1996); Richard A. Epstein, The Independence of Judges: The Uses and Limitations of Public Choice Theory, 1990 B.Y.U. L. REV. 827, 846 (judicial independence helps check a government's efforts to control its citizens because it interposes an additional obstacle between the government and its citizens); Irving R. Kaufman, Chilling Judicial Independence, 88 YALE L.J. 681, 684, 689 (1979); Maeva Marcus, The Adoption of the Bill of Rights, 1 WM. & MARY BILL RTS. J. 115, 119 (1992) (quoting James Madison's speech to the House of Representatives that "independent tribunals of justice will con- sider themselves in a peculiar manner the guardians" of the Bill of Rights). 3 See DIETRICH RUESCHEMEYER, LAWYERS AND THEIR SOCIETY: A COMPARATIVE STUDY OF THE LEGAL PROFESSION IN GERMANY AND THE UNITED STATES 69 (1973) (noting that "with increasing complexity of the system of legal rules and a persistent moral authority of 'the law,' open and continuous interference with judicial decisionmaking by outside lay parties has become intolerable in modem societies, since it would seriously disturb the predictable functioning of the legal system, a matter of practical as well as intense moral concern"); Jiang Ping, Chinese Legal Reform: Achievements, Problems and Prospects, 9 J. CHINESE L. 67, 73 (1995) (noting that some individuals in China believe that an independent judiciary is necessary for the development of a market economy and the prevention of corruption in the courts). This Article assumes the importance of judicial independence. Why judicial independence may be important is beyond the scope of the Article. 4 BASIC LAW FED. REP. GER. art. 97(1) (official trans.) ("Judges shall be indepen- WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 5:1 Proclaiming the importance of judicial independence, however, does not make judges independent. For example, the 1936 Constitution of the former Union of Soviet Socialist Republics, adopted under the Stalin re- gime, states that "Judges shall be independent and subordinate to law."5 Notwithstanding this formal recognition of judicial independence, judges in the former Soviet Union were not independent. Members of the Soviet government or the Communist Party regularly interfered with judicial deliberations in individual cases, instructing the judges to reach particular decisions.6 Although judicial independence may be an abstract social value, its existence depends upon specific institutional elements that can be analyz- ed. This Article has two goals: first, to identify the specific institutional elements of judicial independence; and second, to analyze those elements in